Supreme Court’s conservatives take aim at Voting Rights Act

Obama administration lawyer Donald Verrilli was back in front of the Supreme Court today. (Associated Press)

A key provision of the 1965 Voting Rights Act became a target Wednesday of conservatives on the U.S. Supreme Court who questioned whether it remains constitutional or unfairly targets mostly Southern states.

Chief Justice John Roberts voiced skepticism that only certain states remain covered despite progress and racial electoral gains, while other states have never fell under the provisions designed to protect against discrimination.

Roberts asked U.S. Solicitor General Donald Verrilli Jr., if it is “the government’s submission that citizens of the South are more racist than the citizens in the North.”

Verrilli replied no, and argued that a section of the law that requires a state to receive prior approval to changes in voting rights laws is the result of a record of past discrimination and recent rulings of discriminatory acts.

The court appeared divided along ideological lines during oral arguments that provided sharp questions by the justices and terse answers by the lawyers appearing before the high court.

Bert Rein, the lawyer arguing on behalf of Shelby County, Ala., which brought the voting rights challenge before the court, was cut short by Justice Sonia Sotomayor, who recounted recent incidents of discrimination there.

“Some portions of the South have changed, your county hasn’t,” Sotomayor said.

Alabama, like Texas, is one of nine states that must receive preclearance by the federal government to change voting laws or procedures under Section 5 of the Voting Rights Act.

Congress has reauthorized the law four times since 1965, the last time in 2006, when it passed overwhelmingly by the House and Senate and signed into law by President George W. Bush.

The Voting Rights Act was first designed to prevent discriminatory practices against African-Americans in the South, where states and entities consistently ignored constitutional voting protections under the 15th Amendment.

It was expanded in the 1970s to prevent discrimination against “language minority groups.” Texas fell under the Section 5 provision when it failed to print ballots in Spanish.

Texas Attorney General Greg Abbott filed a brief siding with Shelby County, Ala., in its challenge to the constitutionality of Section 5.

Abbott also challenged the constitutionality of Section 5 in an appeal to the Supreme Court last year over an August ruling by a federal panel that the state intentionally discriminated against minorities in redistricting maps for Congress and the state House and Senate.

The Supreme Court has yet to act on the Texas appeal, and lawyers on both sides say the justices could wait until after they rule in the Shelby County case.

A Supreme Court ruling on the Shelby County case will have immediate impact in the nine Section 5 states, as well as political entities in seven other states, including California, where the provision applies.

Minority groups filed briefs siding with the Justice Department in keeping the Voting Rights Act intact.
And the steps to the Supreme Court were crowded with protesters holding placards and giving speeches urging the justices to uphold Voting Rights Act protections.

“This could have a significant affect for Latino voters in Texas and other states across the country,” said Rep. Ruben Hinojosa, D-Mercedes, chairman of the Congressional Hispanic Caucus, who spoke at a rally on the steps.

Rep. Sheila Jackson Lee, D-Houston, a member of the Congressional Black Caucus, also appeared, saying the Voting Rights Act was still needed “at a time when we have witnessed unprecedented attacks on the right to vote.”

He said recent federal court rulings on state election changes show that “Texas is shining example of why we still need the Voting Rights Act.”

In addition to the federal court’s ruling on Texas redistricting, the three-judge panel also found intentional discrimination when the GOP-led state Legislature passed a new stringent voter ID law.

Inside the courtroom and under questioning, Verrilli told the justices that Section 5 served as a mechanism to prevent states and entities from implementing discriminatory laws before legal challenges could be mounted.

Without Section 5, groups would face costly and drawn out challenges to laws that could eventually be determined to be discriminatory.

But Justice Antonin Scalia and Justice Samuel Alito asked why more states should not be forced to comply with the provisions, and argued that some states could be unfairly singled out, despite progress, while others not initially covered discriminate.

Roberts pointed out that since the 1965 law was initially passed to remedy discriminatory actions that led to a disparity in voter registration, some Southern states have a better record than their counterparts in the North.

Roberts noted that parity for white and black voter registration was greater in Mississippi than in Massachusetts.

Justice Anthony Kennedy, who has been a swing vote on the divided court, said Section 5 was clearly needed during earlier eras – when polling places were switched last-minute to disenfranchise minority voters.

But Kennedy questioned whether prior federal government approval for changes in state laws is still needed when there are other provisions are designed to curb discriminatory practices.

Kennedy left open the question of how far the Supreme Court could go in its examination of the act that has been applied for half a century.

Debo Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, said Section 5 was the enforcement mechanism to other provisions and forced compliance.

Adegbile noted that after a Texas mid-decade redistricting plan was found by the Supreme Court to be discriminatory in 2006, the prior approval provision then stopped the state from implementing a shortened early voting period designed to protect a GOP congressional incumbent.